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Abstract

"Accordingly, [King Rex] announced to his subjects that he had written out a code and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his scrivener. To Rex’s surprise this sensible plan was deeply resented by his subjects. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were."--LON L. FULLER, THE MORALITY OF LAW

If the Federal Analogue Act (Analog Act) is to be applied evenly and consistently, regardless of race or class, against all defendants for possessing any analog substance, chocolate must be recognized as the legal equivalent of heroin. Selling brownies at a bake sale, drinking a mug of cocoa, or buying cookies from a Girl Scout can be punished as though the chocolate were an equivalent quantity of a methamphetamine mixture. The Analog Act criminalizes substances that are “substantially similar” to scheduled narcotics in structure and effect and intended for human consumption. “Substantially similar” has no coherent or standardized definition, so it ultimately means whatever the jury or judge desires. In United States v. Makkar, Justice Neil Gorsuch, then a circuit judge for the Tenth Circuit Court of Appeals, questioned whether the courts should finally void the Analog Act based on the vagueness of the phrase “substantially similar.” This Article answers in the affirmative. Despite almost every federal court having deemed it constitutional, the Analog Act should be voided at the earliest opportunity. The Analog Act violates the traditional void-for-vagueness doctrine because no one can realistically know in advance what the Analog Act outlaws or the punishment for violations; even scientists and drug experts— including the Drug Enforcement Administration (DEA)—routinely disagree on which substances qualify as analogs. All substances are neither legal nor illegal until a jury reaches its verdict, but because analog status is a fact found by the jury, prosecutions routinely reach opposing conclusions regarding the legality of the same substance. By criminalizing even mundane substances, the Act casts too wide of a net, making any enforcement arbitrary. As illustrated by the circuit splits both preceding and following the Supreme Court’s only Analog Act decision, McFadden v. United States, no scienter requirement has proven capable of effectively narrowing the Act’s scope.

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